THURGOOD A. MARSHALL MEMORIAL MOOT COURT COMPETITION IN THE SUPREME COURT OF THE UNITED STATES

Transcription

1 Team Number 39 THURGOOD A. MARSHALL MEMORIAL MOOT COURT COMPETITION IN THE SUPREME COURT OF THE UNITED STATES ROBERT BLACK, v. Petitioner, UNITED STATES, Respondent. ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT BRIEF FOR THE PETITIONER

2 TABLE OF CONTENTS Table of Authorities... ii Questions Presented... iv Statement of Jurisdiction... v Statement of the Case... vi Argument... 1 I. THE GOVERNMENT S SEIZURE AND RECONSTRUCTION OF SHREDDED DOCUMENTS VIOLATED THE DEFENDANT S FOURTH AMENDMENT RIGHTS AGAINST UNREASONABLE SEARCH AND SEIZURES... 1 A. Standard of Review... 1 B. The Government Committed a Physical Trespass in Violation of the Fourth Amendment 1 1. Physical Trespass is the Proper Test Applied Under the Fourth Amendment The Government Committed a Physical Trespass on the Defendant s Container and Documents... 4 C. The Government Violated the Appellant s Reasonable Expectation of Privacy When They Reconstructed the Shredded Documents... 6 II. APPELLANT WAS DEPRIVED OF SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL WAS INVOLVED IN THE SAME CONSPIRACY CHARGED... 9 A. Standard of Review... 9 B. Trial Counsel Had an Actual Conflict of Interest with the Appellant Because of His Involvement in the Criminal Conspiracy... 9 C. Even Under Cuyler v. Sullivan, Trial Counsel s Assistance Should Still Be Ruled Ineffective D. Trial Counsel s Relationship with Another Member of the Conspiracy Is a Conflict of Interest that Led to Ineffective Assistance of Counsel Conclusion i

3 TABLE OF AUTHORITIES Cases Bellamy v. Cogdell, 974 F.2d 302 (2d Cir. 1992) Botkin v. Kickapoo, Inc., 211 Kan. 107 (1973)...5 California v. Greenwood, 486 U.S. 35, 37 (1988)...6, 7 California v. Rooney, 483 U.S. 307 (1987)...5 Cuyler v. Sullivan, 446 U.S. 335 (1980)... passim Davis v. United States, 131 S. Ct (2011)... 3 Dow Chem. Co. v. United States, 476 U.S. 227 (1986)... 9 Gideon v. Wainwright, 372 U.S. 335 (1963) Holloway v. Arkansas, 435 U.S. 475 (1978) Katz v. United States, 389 U.S. 347 (1967)... 2, 6 Kyllo v. United States, 533 U.S. 27 (2001)... 7, 8 Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012)... 2, 3 Mannhalt v. Reed, 847 F.2d 576 (9th Cir. 1988)...11 McMann v. Richardson, 397 U.S. 759 (1970) Mickens v. Taylor, 535 U.S. 162 (2002)...10, 12, 13 Minnesota v. Carter, 525 U.S. 83 (1998)... 4 See v. City of Seattle, 387 U.S. 541 (1967)...8 Smith v. Maryland, 442 U.S. 735 (1979)... 5 Strickland v. Washington, 466 U.S. 668 (1984)...10 United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984)...12, 13, 14 United States v. Edwards, 424 F.3d 1106 (D.C. Cir. 2005)... 1 ii

4 United States v. Ellison, 798 F.2d 1102 (7th Cir. 1986) United States v. Fulton, 5 F.3d 605 (2d Cir. 1993)... 11, 15 United States v. Hall, 47 F.3d 1091 (11th Cir. 1995)... 7 United States v. Holmes, 505 F.3d 1288 (D.C. Cir. 2007)... 1 United States v. Jones, 132 S. Ct. 945 (2012)... passim United States v. Knotts, 460 U.S. 276 (1983)... 3 United States v. Nwobi, 2012 WL (C.D. Cal. Mar. 7, 2012) aff'd, 2013 WL (9th Cir. Oct. 24, 2013)...3 United States v. Scott, 975 F.2d 927 (1st Cir. 1992)... 6, 7, 8 United States v. Williams, 372 F.3d 96 (2d Cir. 2004) Weisgram v. Marley Co., 528 U.S. 440 (2000)... 9 Constitutional Provisions U.S. Const. amend. IV... i, 4, 8 U.S. Const. amend. VI... i, 9, 10 ABA Model Rules of Professional Responsibility RULE iii

5 QUESTIONS PRESENTED 1. Whether an intrusion by the Government into a document receptacle and seizure of shredded documents therein violated the owner of the receptacle and documents right to be free from unreasonable search and seizure under the Fourth Amendment. 2. Whether the secret conspiratorial criminal activity and subsequent indictment of trial counsel with an unindicted co-conspirator of his client gives rise to a conflict of interest such that it deprives the client of his Sixth Amendment right to counsel at trial. iv

6 STATEMENT OF JURISDICTION The petition for a writ of certiorari was filed in a timely manner. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). v

7 STATEMENT OF THE CASE Statement of the Facts The Drug Enforcement Administration ( DEA ) began an investigation against the Appellant, Black, in the spring of R. at 1. The DEA believed Black was involved in methamphetamine production at Black s place of business, A&L Abatement ( A&L ). R at 1. The DEA set up surveillance on Black for two weeks with no results. R. at 1. They also rummaged through Black s garbage can outside of his home. R. at 1. On July 6, 2011, the DEA was performing surveillance and saw Black wheel a large blue receptacle to the street curb with the words Paper Fortress Inc. printed on it. R. at 1. Black then dumped a load of shredded paper into the receptacle. R. at 1. Black then left A&L, leaving the trash on the curb. R. at 2. DEA Agents approached the container and lifted its lid to open it. R. at 2. DEA Agents then picked up the documents found inside and found shredded documents and intact documents. R. at 2. The DEA recovered the documents and loaded them into boxes to return to their offices. R. at 2. Fortress Paper, LLC came by several minutes later to recover the receptacle. R. at 2. The DEA began going through the documents and did not recover information from the intact documents. R. at 2. The DEA attempted to piece together the shredded documents without success. R. at 2. They contacted the Department of Justice s Forensic Services Department for assistance, who provided software to reconstruct the shredded documents. R. at 2. The DEA discovered purchase orders for large equipment that could be used for methamphetamine production as well as tax documents. R. at 3. The DEA used these documents to obtain search warrants for the A&L offices. R. at 3. The search of A&L produced incriminating evidence, which, combined with the shredded documents, led the DEA to other businesses used for methamphetamine production. R. at 3. vi

8 In August 2011 Appellant Black was charged, in the U.S. District Court for the District of Jensen, with numerous violations of the Federal Controlled Substances Act and associated conspiracies with both indicted and unindicted co-conspirators. R. at 3. Black s defense counsel for those proceedings was Larry Frazier. R. at 3. At the trial Frazier appeared uncharacteristically nervous and harried and in August 2012 Black was convicted of all charges. R. at 4-6. Ten days after he was convicted, Black, now represented by Assistant Federal Public Defender Gary Cohen, moved for a new trial under Rule 33(b)(2) of the Federal Rules of Criminal Procedure. R. at 4-5. At the hearing on the motion for a new trial Cohen argued that Black had been deprived of his right to counsel under the Sixth Amendment. R. at 5. Cohen argued that it was apparent that Frazier had a conflict of interest in this case that prevented him from fulfilling Black s right to adequate representation. R. at 5-6. Unbeknownst to Black during the pendency of his case Frazier was the subject of a Suspicious Activity Report to the U.S. Department of the Treasury by several financial institutions in neighboring states. R. at 5. Two days after Black was convicted the grand jury for the Eastern District of Louisiana unsealed an indictment based on a Treasury Department investigation into Frazier s apparent criminal activity. R. at 5. According to Treasury, Frazier had been working with Redman, who was one of Black s partners in his methamphetamine operation. R. at 5. The investigation found that Frazier was laundering money earned by Redman in the methamphetamine operation as well as helping Redman buy real estate and invest in small businesses in order to generate a stream of apparently legitimate income. R. at 5. Arguably, instead of solely representing Black at trial, Frazier was representing not only the vii

9 interest of an unindicted co-conspirator, Redman, but also seemed to have been an active member of the greater conspiracy himself. R. at 5. Black did not know Frazier was working with Redman. R. at 5 He only made the connection after learning that Redman and Frazier had both been indicted for money laundering. R. at 5. Additionally at the time the Suspicious Activity Report was issued neither the DEA nor any member of the Jensen U.S. Attorney s Office had any knowledge of the investigation into Frazier. R. at 5. Nor did the Treasury or the Louisiana U.S. Attorney s Office know of the connection between Frazier and Redman s money laundering and Black s charges in Jensen. R. at 5. Procedural History In August 2011, Black was charged with violation of the Federal Controlled Substances Act in the United States District Court for the District of Jensen. R. at 3. Pretrial, the district court denied Black s motion to suppress evidence documents recovered in a receptacle used to convey documents to Paper Fortress for shredding and disposal. R. at 4. In August 2012, the trial against Black occurred and he was convicted of all charges. R. at 4. Ten days after his conviction, Black moved for a new trial under Rule 33(b)(2) of the Federal Rules of Criminal Procedure. R. at 4. Before the new trial, Black s counsel again litigated the suppression of evidence claim as well as a violation to counsel under the Sixth Amendment. R. at 5. The district court orally denied the two motions. R. at 6. Black filed an appeal with the United States Court of Appeals for the Thirteenth Circuit. R. at 6. The Thirteenth Circuit affirmed the district court s ruling and the conviction of Black. R. at 6. Black filed petition for the Supreme Court of the United States for a writ of certiorari which was granted. R. at 7. viii

10 ARGUMENT SUMMARY This Court should reverse the decision issued by the United States Court of Appeals for the Thirteenth Circuit. The Thirteenth Circuit erred in their application of the Fourth Amendment to a motion to suppress evidence by the Appellant. Primarily, the Thirteenth Circuit failed to assess whether the Government had committed a common-law trespass onto the property of the Appellant. The proper test under the Fourth Amendment and articulated by this Court in Jones is to ask first whether a trespass had been committed, followed by whether the owner of the property had a reasonable expectation of privacy. The Thirteenth Circuit erred when it only applied the reasonable expectation of privacy consideration. The Government did commit a physical trespass on the property of the Appellant when it opened the trash receptacle he owned, or at least was the bailee of, and seized the documents he owned therein. The property was not abandoned because the Appellant had not manifested an intent to discard the property because he intended to deliver it to Fortress Paper, LLC. Pursuant to a contract between Fortress Paper, LLC and the Appellant, Fortress Paper would collect the documents, shred them, and dispose of them. The Appellant also did not relinquish a property interest in the receptacle or the documents when he placed them on the curb because he had the right to retain them, up until the point Fortress Paper arrived. Alternatively, if this Court ignores the common-law trespass test in this case, the Appellant had a reasonable expectation of privacy in his shredded documents. When the DEA reconstructed the shredded documents using high-level technology borrowed from the Department of Justice, they committed a second search. In doing so, they violated a reasonable expectation of privacy because they used technology otherwise unavailable to the general public consistent with this Court s ruling in Kyllo. Because the Appellant reasonably expected no one ix

11 else could access the documents and reveal their contents, his Fourth Amendment right to be free from unreasonable searches was violated when the DEA reconstructed the documents. Therefore, this Court should reverse the Thirteenth Circuit s ruling. This Court should also reverse the Thirteenth Circuit s ruling and find that the involvement of counsel in the defendant s crimes did violate the defendant s right to effective assistance of counsel under the Sixth Amendment. The severity and magnitude of the conflict of interests that occurs when trial counsel is actively representing his own interests in a case means that the Second Circuit s per se rule should be applied. Even under the more general Cuyler v. Sullivan rule for conflicts of interest the trial court should have held that Frazier had an actual conflict with Black. The trial court erred when it held that Frazier and Black s interest aligned throughout the trial and that no conflict of interest existed. The reasonable fear of having his criminal activity discovered meant that trial counsel may not have presented as vigorous a defense as he would have if he did not labor under the conflict of interest. Under this more general rule, Appellant has to show that counsel not only had a conflict of interest with his client but also that the conflict of interest led to an adverse effect on the attorney s performance. The trial court failed to pass judgment on Frazier s performance during the trial because they incorrectly held that a conflict of interest did not exist in this situation, even though Frazier was a member of the larger conspiracy Black was involved in. Additionally, this court should find that Frazier s relationship with Black s partner Redman led to a conflict of interest in this case. Granted, this does not look like a traditional multiple representation case. However, the dangers of multiple representation, namely that an attorney will have to forgo possible defenses or tactics in order to help his other client, are x

12 present here. Because of trial counsel s loyalty to as an associate to Redman, he may have been forced to ignore some defensive tactics that would have otherwise have been open to him. Under Cuyler v. Sullivan this relationship Frazier had with Redman is a conflict of interest and the trial court should have determined if Frazier s performance was adversely affected because of it. xi

13 ARGUMENT I. THE GOVERNMENT S SEIZURE AND RECONSTRUCTION OF SHREDDED DOCUMENTS VIOLATED THE DEFENDANT S FOURTH AMENDMENT RIGHTS AGAINST UNREASONABLE SEARCH AND SEIZURES This Court should reject the Thirteenth Circuit s ruling that the Government s seizure and reconstruction of shredded documents found in a receptacle outside the Appellant s business did not violate his Fourth Amendment rights against unreasonable search and seizures. The Thirteenth Circuit misapplied the Fourth Amendment and should have found that the Government committed a trespass against the Appellant s papers and effects and so, performed a search. Alternatively, the Thirteenth Circuit should have found that the reconstruction of the shredded documents constituted a search when the Government had to use technology not generally available to interpret the evidence. A. Standard of Review A district court's legal rulings on a motion to suppress are reviewed de novo and its factual findings are reviewed for clear error. See United States v. Holmes, 505 F.3d 1288, 1292 (D.C. Cir. 2007). Whether the district court's findings of fact support a determination of reasonable articulable suspicion or probable cause is reviewed de novo. See United States v. Edwards, 424 F.3d 1106, 1108 (D.C. Cir. 2005). B. The Government Committed a Physical Trespass in Violation of the Fourth Amendment The Government violated the Appellant s Fourth Amendment right to be free from unreasonable search and seizures when they trespassed into a container owned by the Appellant and seized his papers. The Court of Appeals for the Thirteenth Circuit incorrectly applied the Fourth Amendment to the Government s intrusion and because of that misapplication this Court should overrule that decision and overturn the conviction of the Appellant. 1

14 1. Physical Trespass is the Proper Test Applied Under the Fourth Amendment The Court of Appeals for the Thirteenth Circuit improperly applied the Fourth Amendment to the seizure of the Appellant s documents. The Supreme Court in United States v. Jones, 132 S. Ct. 945, 949 (2012), articulated that the Fourth Amendment is violated when the Government physically occupied private property for the purpose of obtaining information. The Court stated that the physical intrusion of placing the GPS device on Jones s car would have been considered a search within the meaning of the Fourth Amendment when it was adopted and that the text of the Amendment clearly indicated a close connection to property interests. Id. at 949. Fourth Amendment jurisprudence was founded in concepts of common-law trespass through the early 20 th century, but in Katz v. United States, 389 U.S. 347, 351 (1967), the Court deviated from an exclusively property-based approach. Jones, 132 S. Ct. at 950. Courts continued to apply the construction articulated by Justice Harlan s concurring opinion and asked whether there had been a violation of a constitutionally protected reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 360 (1967). However, Katz did not narrow the Fourth Amendment's scope. Jones, 132 S. Ct. at 951. Instead, it is clear that the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. Id. at 952 (emphasis in original). In post-jones cases, courts have recognized that physical intrusion is the primary test followed by an analysis of whether a reasonable expectation of privacy has been violated. In Lavan v. City of Los Angeles, 693 F.3d 1022, 1024 (9th Cir. 2012), the Ninth Circuit found the Fourth Amendment had been violated when the City of Los Angeles seized the possessions of homeless persons when they temporarily left those possessions on public streets. The Ninth Circuit in treating this 42 U.S.C claim stated that the a reasonable expectation of privacy 2

15 is not necessary for a violation of the Fourth Amendment and stated, [t]he Fourth Amendment protects against unreasonable interferences in property interests regardless of whether there is an invasion of privacy. Id. at In the present case, the Thirteenth Circuit held in its unpublished opinion that the Appellant did not have a reasonable expectation of privacy and so, the Fourth Amendment had not been violated. R. at 6. In doing so, the Court of Appeals erred in its reasoning and should be overruled. The proper test to apply in this case is to first ask whether a physical intrusion had been committed by the Government when it entered the container and seized the shredded documents. The reasoning in Jones is still applicable in in this case, even in light of the Court s decision in in Davis v. United States, 131 S. Ct. 2419, (2011), which held that evidence should not be excluded where police rely on binding appellate precedent. One might argue that because the events of this investigation took place in 2011, prior to the Jones decision in 2012, R. at 1., the exclusionary rule might not apply if Thirteenth Circuit precedent did not support a common-law trespass approach. See United States v. Nwobi, 2012 WL , at *2 (C.D. Cal. Mar. 7, 2012) aff'd, 2013 WL (9th Cir. Oct. 24, 2013) (rejecting application of Jones in light of Davis when Ninth Circuit precedent had allowed for warrantless use of GPS tracking devices). However, the Court in Jones made clear that it was not announcing a new principle of constitutional law, but merely clarifying that common-law trespass is and has been part of Fourth Amendment analysis by the Court. Jones, 132 S. Ct. at 952. The Court never completely abandoned the incorporation of common-law property concepts. See United States v. Knotts, 460 U.S. 276, 286 (1983) (concurring Brennan, J.) ( [W]hen the government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may 3

16 constitute a violation of the Fourth Amendment. ); Minnesota v. Carter, 525 U.S. 83, 88 (1998) (noting that expectations of privacy have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law... ). 2. The Government Committed a Physical Trespass on the Defendant s Container and Documents Following the physical trespass doctrine embodied in the Fourth Amendment and articulated in Jones, the Government committed a physical trespass when it searched the document receptacle and seized the documents therein. It is clear that, Fourth Amendment rights do not rise or fall with the Katz formulation, Jones, 132 S. Ct. at 950. In Jones, the Government placed a GPS tracker on a suspect s car without a warrant and monitored his movements. Id. at 948. The Government used the evidence to convict Jones of conspiracy to distribute cocaine. Id. The district court denied a motion to suppress the GPS data on the basis that individuals do not have a reasonable expectation of privacy in their movements on public streets. Id. The Court of Appeals for the District of Columbia reversed on the grounds of the warrantless use of the GPS device. Id. at 949. The Supreme Court reviewed the denial to suppress the GPS data and found that the Fourth Amendment specified effects which included the car driven by Jones and the Government had trespassed on the car when it attached the GPS device. Id. Because a search had occurred without a warrant, the evidence should have been suppressed and the Court affirmed the Court of Appeals ruling. Id. at 954. The present case meets the same standard as Jones for a trespass and should be reversed on these grounds. The Fourth Amendment establishes, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. U.S. Const. amend. IV (emphasis added). It is clear that the large blue garbage 4

17 container constitutes an effect under the Fourth Amendment. The Appellant purchased the container for $100, R. at 4, and law enforcement agents saw the Appellant move the receptacle from his business to the street. R. at 1. The Appellant clearly owned the receptacle, which is an even stronger ownership interest than in Jones, where Jones might have been the bailee of the car which was owned by his wife. Jones, 132 S. Ct. at 939 n.2. Within the receptacle, the Government found documents, which are clearly within the meaning of papers under the Fourth Amendment. R. at 2. When the Government seized these documents, they committed a trespass on property that was clearly owned by the Appellant. Because this seizure constituted a search, the Fourth Amendment had been violated and the Thirteenth Circuit s ruling should be overturned. The Government cannot contend that the Appellant abandoned the documents such that he relinquished his property rights in them and cannot contest the trespass. See California v. Rooney, 483 U.S. 307, 320 (1987) (avoiding determining whether the property was abandoned trash in favor of determining whether there was a reasonable expectation of privacy). In general, abandoned property is that which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting it in any other person... Botkin v. Kickapoo, Inc., 211 Kan. 107, (1973). In the present case, the Appellant placed the documents in the receptacle so that they would be transferred to Paper Fortress with the intent they would be collected, shredded, and recycled. R. at 4. In no way did the Appellant relinquish his property interest in the documents or the receptacle. The Government can also not contend that this is a case where the Appellant voluntarily transmitted the documents to a third party. See Smith v. Maryland, 442 U.S. 735, (1979) ( This Court consistently has held that a person has no legitimate expectation of privacy in 5

18 information he voluntarily turns over to third parties. ). The Appellant never relinquished his property interest in the receptacle and retained his property interest in the documents until they were transferred. C. The Government Violated the Appellant s Reasonable Expectation of Privacy When They Reconstructed the Shredded Documents Even if this Court finds that a physical trespass into the receptacle and onto the documents did not occur, the Appellant manifested a reasonable expectation of privacy under Katz when he shredded his documents and disposed of them. The Court of Appeals for the Thirteenth Circuit erred when it held that the Government s reconstruction of the shredded documents did not constitute a search. The Court in California v. Greenwood, 486 U.S. 35, 37 (1988) treated the issue of whether the seizure of garbage left for collection outside of the curtilage of a home violates the Fourth Amendment and held that it does not. The Court held that, although the owner manifested a subjective expectation of privacy because the trash was not left out on the street for long and was due to be picked up by the trash collector, the garbage was accessible to animals, children, scavengers, snoops, and other members of the public. Id. at 39. Further, the trash collection company would have had the ability to access the contents of the trash or turn them over to the police. Id. at 40. Because the trash left out was subject to public inspection, the owner held no reasonable expectation of privacy, and so, the search was upheld as valid. Id. at 41. The First Circuit in United States v. Scott, 975 F.2d 927, 928 (1st Cir. 1992) elaborated on these principles when assessing a case where shredded documents were disposed of and put in public trash. The court in Scott overturned the district court s decision to suppress the evidence and held that when the evidence was seized, it was public trash. Id. at 929. The court stated that 6

19 it did not matter that technology was used to piece together the shredded documents because, There is no constitutional requirement that police techniques in the detection of crime must remain stagnant while those intent on keeping their nefarious activities secret have the benefit of new knowledge. Id. at 930. Further, Law enforcement officials are entitled to apply human ingenuity and scientific advances to collect freely available evidence from the public domain. Id. Likewise, the Eleventh Circuit in United States v. Hall, 47 F.3d 1091, 1094 (11th Cir. 1995) held that the manner by which trash is discarded does not create privacy rights. The Court held that using a private trash company did not establish privacy rights distinguished from Greenwood and that the owner only held a subjective expectation of privacy. Id. at Applying Scott and Hall to the present case would render the Government use of the sophisticated scanning and optical character-recognition software, R. at 2., a proper search under the Fourth Amendment. However, the holdings in Scott and Hall should be rejected in light of the Supreme Court s decision in Kyllo v. United States, 533 U.S. 27 (2001). The Court in Kyllo held that where the Government uses a device that is not in general public use to perform surveillance, the Government has committed a search. Id. at 40. In Kyllo, the agents from the Department of Interior used a thermal imager to detect infrared radiation in a home where the agent suspected Kyllo had high-intensity maps to grow marijuana. Id. at 29. The Court held that the use of technology not readily available to the public targeted at the home, a constitutionally protected place, constituted a search under the Fourth Amendment. Id. at 40. In the present case, technology not available to the general public was used to piece together the shredded documents found in the trash receptacle. R. at 2. In fact, the technology used was not available to the DEA agents performing the reconstruction until they consulted the 7

20 Department of Justice s Forensic Services Department. Id. Like the thermal imagers, this technology was not widely available and was used to determine details and so, the Government committed a search. Although the court in Scott stated that the police were free to piece together documents torn up by hand to gather evidence, Scott, 975 F.2d at 930, the present case is one where technology was necessary to gather any evidence. The First Circuit stated, [t]he Fourth Amendment, however, does not protect appellant when a third party expends the effort and expense to solve the jigsaw puzzle created by shredding, but this statement is wrong in light of Kyllo where the Court held It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. Kyllo, 533 U.S. at Even though the Court in Kyllo treated the violation of a search of the home and this case involves documents found outside of a business, the present case should be afforded the same constitutional protections as Kyllo because of the language of the Fourth Amendment and because a business setting is no less protected. The Fourth Amendment clearly states, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. U.S. Const. amend. IV (emphasis added). Although the home listed first and the Court has recognized its sanctity when protecting privacy afforded to individuals, Kyllo 533 U.S. at 37, papers are specifically identified in the Fourth Amendment and should be granted protection. Kyllo is also applicable even though it concerned a home and this case concerns business documents. The Court in See v. City of Seattle, 387 U.S. 541, 543 (1967) stated, The businessman, like the occupant of a residence, has a constitutional right to go about his business 8

21 free from unreasonable official entries upon his private commercial property. Even though the Court later held reduced protections in the commercial context in Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986) where aerial photographs were taken of an industrial plant that deemed not to be curtilage, businesses and their property are not without their own privacy protections. In the present case, despite that the search was committed against business documents and not against a home, Supreme Court precedent supports a finding that a search did occur. The Fourth Amendment makes specific mention to the search of papers and the Supreme Court has extended privacy protections to businesses, such as in this case. II. APPELLANT WAS DEPRIVED OF THE SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL WAS INVOLVED IN THE SAME CONSPIRACY CHARGED This Court should reverse the Thirteenth Circuit s ruling and find that the involvement of counsel in the defendant s crimes did violate the defendant s right to effective counsel under the Sixth Amendment. Alternatively, the Thirteenth Circuit should have found that there was an actual conflict of interest in this case because of the relationship between trial counsel and the defendant s co-conspirator. A. Standard of Review When reviewing a district court s decision on a motion for a new trial, the standard of review is abuse of discretion. See Weisgram v. Marley Co., 528 U.S. 440, 442 (2000). B. Trial Counsel Had an Actual Conflict of Interest with the Appellant Because of His Involvement in the Criminal Conspiracy Appellant s trial counsel did not provide him with effective assistance of counsel as required by the Sixth Amendment, because he was a member of the larger conspiracy Appellant was charged with and therefore was representing his own interests at trial. The Court of Appeals 9

22 for the Thirteenth Circuit incorrectly applied the Sixth Amendment to trial counsel s performance and because of that misapplication this Court should overrule the Court of Appeals decision. This Court has never addressed a conflict of interest case in which trial counsel was involved in the same criminal activity as their client. However, this Court has outlined, through a series of cases, a test for determining if counsel was ineffective because of a conflict of interest. Generally, in order to show ineffective assistance of counsel, when the claim is raised after the trial, the defendant has to satisfy a two pronged test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant must show that his counsel s performance was deficient and demonstrate that the deficient performance prejudiced his defense. Id. There is an exception to that two pronged test, however. A presumption of prejudice can be made without needing the defendant to prove that the ineffective assistance of his counsel had a probable effect on the outcome of his case. See Mickens v. Taylor, 535 U.S. 162, 166 (2002). Such an exception occurs only when the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary. Id. This Court has held that this exception applies when counsel has been denied, either entirely or during a critical stage of the proceeding, as well as when other circumstances of that magnitude arise. Id. Additionally this Court has held in several cases that circumstances of that magnitude may also arise when the defendant s attorney actively represented conflicting interests. Id. The Court is so interested in protecting defendants from ineffective assistance of counsel because a defendant s right to counsel is a fundamental aspect of the criminal justice system. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963). The Sixth Amendment provides that [i]n all 10

23 criminal prosecutions, the accused shall enjoy the right to... have the Assistance of Counsel for his defense. U.S. Const. amend. VI. Over time, this court has determined that the right to counsel is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 (1970). Because of the divided loyalties of their counsel, there have been several cases in which it has been determined that defendants received ineffective assistance of counsel due to a conflict of interest. See United States v. Williams, 372 F.3d 96, 104 (2d Cir. 2004); United States v. Ellison, 798 F.2d 1102, 1107 (7th Cir. 1986); Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir. 1988). Under the American Bar Association s Model Rules a conflict of interest exists when there is a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. MODEL RULES OF PROF L CONDUCT R. 1.7 (2013) (emphasis added). Because of the severity of the conflict that arises when an attorney s own interests are in conflict with the interest of his client. Cases of this magnitude should not be looked at under the normal ineffective assistance of counsel test, outlined above. Instead a stronger per se rule should be applied in cases where the attorney is implicated in the defendant s crimes. Under this rule even if the issue is first raised after the trial has ended it is automatically an actual conflict of interest requiring a new trial, without needed to show any adverse effect on representation. The Second Circuit has a long history of applying the per se rule to two very narrowly carved out exceptions to the normal ineffective assistance of counsel test. The first is when counsel has not been licensed to practice law. See United States v. Fulton, 5 F.3d 605, 611 (2d Cir. 1993). The second narrow exception occurs when counsel has engaged in the defendant s 11

24 crimes. Id. The second exception encompasses the issue in the instant case. The need for the per se rule is clear in the above situations. When an attorney has been implicated in the defendant s crimes the defense is necessarily compromised because the advocate ordinarily cannot be wholly free from fear of what might happen if a vigorous defense should lead the prosecutor or the trial judge to inquire into his [or her] background and discover his... own wrongdoing. Bellamy v. Cogdell, 974 F.2d 302, 307 (2d Cir. 1992). The instant case is analogous in many ways to United States v. Cancilla, 725 F.2d 867, 869 (2d Cir. 1984), because in both cases the defense attorney for one member of a conspiracy was alleged to have committed crimes with a different member of the conspiracy. Additionally, in each instance, the allegations about the defense attorney did not surface until after the defendant had been convicted. Id.; R. at 5. In Cancilla, the Second Circuit recognized that with the similarity of counsel's criminal activities to Cancilla's schemes and the link between them, it must have occurred to counsel that a vigorous defense might uncover evidence or prompt testimony revealing his own crimes. Id. at 870. This inability of trial counsel to provide a vigorous defense led the court to reluctantly hold that despite the amount of evidence against Cancilla, because his counsel was per se ineffective his case had to be remanded for a new trial. Id. at In Mickens v. Taylor, 535 U.S. 162, 164 (2002) the Court held that in order to demonstrate a Sixth Amendment violation a defendant must show that a conflict of interest adversely affected his counsel s performance. However, the instant case is distinguishable from Mickens. In Mickens, an attorney failed to disclose to the court that he had previously represented the man who his client was accused of murdering. Id. In the instant case, the attorney was alleged to have been directly and actively involved in the same methamphetamine operation 12

25 as his client. R. at 5. The levels of conflict are not the same and the Court acknowledged there are differing levels of attorney conflicts holding that [n]ot all attorney conflicts present comparable difficulties. Thus, the Federal Rules of Criminal Procedure treat concurrent representation and prior representation differently. Mickens, 535 U.S. at 175. While the Court did not specially address personal attorney conflicts it is clear that there are different requirements depending on the type of conflict present in the case. For example, there is a rule requiring a trial court to inquire into the likelihood of conflict whenever jointly charged defendants are represented by a single attorney (Rule 44(c)), but not when counsel previously represented another defendant in a substantially related matter, even where the trial court is aware of the prior representation. Id. Following this logic, it makes sense to have a different rule for situations in which counsel has personal interests which are actively against the defendants. Applying the per se rule provides a level of protection needed by defendants in order to ensure that the person who is supposed to be their strongest advocate is not benefiting from their downfall. If the per se rule of the Second Circuit is adopted by this court, the Appellant s case would need to be remanded for a new trial, this time with counsel who is not working against him. See Cancilla, 725 F.2d at 871. C. Even Under Cuyler v. Sullivan, Trial Counsel s Assistance Should Still Be Ruled Ineffective Even if the per se rule which the Second Circuit has championed is not adopted by this Court, the trial counsel should still be considered ineffective counsel under the general conflict of interest standard. In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer s performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Neither the district court nor the Court of Appeals made a factual judgment about trial counsel s performance 13

26 because they both held that there was no conflict of interest. R. at 6. In fact, the district court judge stated Mr. Black and Mr. Frazier s interests were quite perfectly aligned. R. at 6. However, this is not the case. When defense counsel has been implicated in the defendant s crimes there is a conflict of interest for [w]hat could be more of a conflict than a concern over getting oneself into trouble with criminal law enforcement authorities? United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). Indeed, the Court in Cancilla stated that a while a conflict of interest when an attorney is representing multiple clients is merely possible, when an attorney s own interests are at issue the conflict is is always real, not simply possible. Id. at 870. The district court also stated that because Mr. Frazier did not seem to be aware that he was about to be indicted when he was trying the case lends support to the ruling that there was no conflict of interest in this situation. R. at 6. However, in situations like the instant case, when the defense attorney was unaware that he was indicted or soon would be, would tend to make him more cautious of revealing his own criminal conduct because a wrong step by counsel in representing their clients might well have drawn unwanted attention to themselves. Cancilla, 725 F.2d at 871. Since the trial court judge never made a factual finding on trial counsel s handling of the case beyond calling him harried or uncharacteristically nervous it is difficult to be sure what adverse effect trial counsel s involvement in the conspiracy had. R. at 6. However, one area that courts are most concerned about the possibility of ineffective assistance of counsel when said counsel is himself implicated in the defendant s crimes are plea deals. Cancilla, 725 F.2d at 871. ( It is difficult to see how counsel conflicted in this way could impartially have given Cancilla advice on whether or not to take a guilty plea, since counsel might have feared that acceptance of 14

27 a plea would turn on Cancilla's cooperation, which might lead to discovery of the link to counsel's own activities. ). D. Trial Counsel s Relationship with Another Member of the Conspiracy Is a Conflict of Interest that Led to Ineffective Assistance of Counsel Trial counsel had a personal relationship with Appellant s partner in the methamphetamine operation, Redman. R. at 5. Trial counsel even appeared to work for Redman, laundering money on his behalf and helping Redman buy real estate and invest in small businesses. R. at 5. This does not look like a traditional multiple representation case where two or more defendants are seated together at the defense table. But the dangers of multiple representation, namely that an attorney will have to forgo possible defenses or tactics in order to help his other client, are present in this case. See Holloway v. Arkansas, 435 U.S. 475, 490 (1978). ( The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate's conflicting obligations have effectively sealed his lips on crucial matters. ) Because of trial counsel s loyalty to as an associate to Redman, he may have been forced to ignore some defensive tactics that would have otherwise have been open to him, such as having Appellant offer information about his partner Redman in exchange for a lesser sentence. In the multiple representation context, an attorney has an actual, as opposed to a potential, conflict of interest when during the course of the representation, the defendants interests... diverge with respect to a material factual or legal issue or to a course of action. United States v. Fulton, 5 F.3d 605, 609 (2d Cir. 1993) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, (1980)). Because of the divergent interests between appellant and Redman and trial counsel s inability to satisfy both conflicting parties, a conflict of interest was present in this case. This court should at minimum remand this case to the trial court so they may determine if this conflict 15

28 effected trial counsel s representation of Appellant, since they did not rule on that issue previously. 16

29 CONCLUSION For the above-stated reasons, the Appellant asks the Supreme Court of the United States overturn the ruling of the United States Court of Appeals for the Thirteenth Circuit Respectfully submitted, Dated: February 28, 2014 Team 39 Counsel for the Appellee 17